Oversight hearing on "The United States Department of Justice"

June 6, 2001

[excerpts on security policy]

[...]

REP. BARNEY FRANK: General, one of the most important things Bill Clinton did for
human rights was to reverse a 40-year-old policy that said that if you were gay or lesbian you
could not get a security clearance. He issued an executive order that changed that. And you and I
have had a chance to discuss this some before, but I did think it was important to make it clear
publicly.

When you testified at the confirmation hearing you said that you were unfamiliar with that
particular issue, and you then did clarify it. And I'd like to ask you to do this now because it's very
important for a lot of people. A security clearance doesn't just apply to people who work in the
federal agencies that deal with security, but for private sector companies that work with them. And
we've had a history of people being subjected to very intrusive questions. And I should know it.

I've checked with the intelligence people. We have no cases that I'm aware of where people
betrayed the country because they were gay or lesbian. Indeed, as I've reviewed the major cases
of espionage, the people who committed it were all heterosexual. I draw no inferences about
heterosexuals based on that -- (laughter) -- I want to reassure people. But I just mention that as a
fact.

So I would ask you, could you now reaffirm that the policy of the United States government will
continue to be that sexual orientation will not be a reason for denying someone a security
clearance?

ATTORNEY GENERAL ASHCROFT: Congressman Frank, during my confirmation hearings I did say as
attorney general I would not make sexual orientation a matter to be considered in hiring or firing,
and that I would continue the policy of the previous administration regarding the sexual orientation
of all employees and potential employees. And I confirm the Department of Justice, the FBI and
every other component of the department does not now discriminate on the basis of race, color,
religion, sex, national origin, disability or sexual orientation. The sexual orientation of a candidate
for employment is not a condition upon which weight is given in the Department of Justice or in
any of its components.

REP. FRANK: Thank you, general. I'm not quite persuaded to apply for a position, but I am glad to
hear that. (Laughter.) I would like to make it explicit, though, that that also includes security
clearances, because a security clearance does cover not simply employees of the federal
government, but people who would be the employee of an architectural or engineering or other
firm dealing with DOE or DOD. So is that part of the policy also being continued?

ATTORNEY GENERAL ASHCROFT: There has been no change in policy. I have ordered none and
have no intention or ordering any.

REP. FRANK: So that also -- so that sexual orientation will not be a reason for, absent some other complicating factor, to deny a security clearance.

ATTORNEY GENERAL ASHCROFT: The policy remains unchanged, and I have no intention and will not
change it.

REP. FRANK: Right. And you do acknowledge that that is the policy. I mean, a "yes" would make
a lot of people just feel better.

ATTORNEY GENERAL ASHCROFT: Yes. Yes.

REP. FRANK: Thank you, general. (Laughter.)

[...]

REP. FRANK: Last point -- and you won't have time to answer -- but the Justice Department, through the FBI, was forced to admit that an agent of this government, an FBI agent, misled a federal court in a way that led to the harsh incarceration of Wen Ho Lee. Now that's acknowledged -- that an FBI
gave false testimony. We don't know whether it was his fault or somebody else had misled him.

I twice wrote to Mr. Freeh and was disappointed, frankly, to get a kind of a runaround. There
needs to be some accountability for this explicit and acknowledged misrepresentation regarding
Wen Ho Lee. The FBI is in total control of the facts. It happened well over a year ago. And I hope
you will direct the FBI to in fact deal with this, because it is very important.

ATTORNEY GENERAL ASHCROFT: Thank you.

[...]

REP. GEKAS: One other question, and that has to do with what policy may have been established thus far in your administration on the use of so-called secret evidence or classified information in the
proceedings before immigration authorities. Is there a sense of what you might be recommending
there? Because our committee is going to have to grapple with that sooner or later again.

ATTORNEY GENERAL ASHCROFT: Frankly, the president of the United States has expressed his
discomfort with this aspect of American immigration. And we have not to date during this
administration used such evidence. I think it is an issue worth our working together on and would
welcome a discussion about how we manage the responsibilities of effectively enforcing our laws,
and also of protecting the rights and respecting individuals in their own rights.

[...]

REP. SCHIFF: Finally, Mr. Attorney General, I wanted to encourage you and follow up on, I think,
Mr. Gekas' question with respect to the secret evidence rule. I had the unfortunate distinction,
when I was in the U.S. attorney's office, of prosecuting the first FBI agent accused of espionage,
Richard Miller. In that case, we successfully used the Classified Information Procedures Act,
which I thought was a good balance between the imperatives of a prosecution, the need to protect
classified data, and also the ability to give the defense opportunity to defend itself. And I would
encourage you, Mr. Attorney General, to consider using a CIPA-like process to repeal the secret
evidence rule, but put in place a mechanism that I think will protect the public safety and at the
same time observe the constitutional rights of anyone detained.

ATTORNEY GENERAL ASHCROFT: Well, I want to thank you for your sensitivity to those issues. We
recognize those issues as being very difficult issues, at the tender intersection between the need
for national security and the rights that individuals have, and we would welcome the opportunity to
help decide and to participate in your deliberations. I believe ultimately the Congress will make the
decision, but we would like to work with you in that respect, if possible.

[...]

REP. CANNON: General, during the campaign last year, then-candidate Bush spoke of reforming the use of secret evidence and addressing racial profiling. Now, Congressman Issa spoke to this a bit. But can you give us a bit of a status report on where the department is on those two issues?

ATTORNEY GENERAL ASHCROFT: Secret evidence is a matter of concern to this administration because it involves a very tender balance between the need to enforce the law and the rights of citizens --
rights of individuals who are standing before the law. And frankly, secret evidence has not been
used during this administration, but this administration is eager to work with the members of this
committee who are concerned about this question to reach an outcome which is satisfactory, that
respects these counterbalanced objectives of the culture.

I've forgotten what the other part of the question --

REP. CANNON: Racial profiling.

ATTORNEY GENERAL ASHCROFT: Well, we're very active in conducting a federal study and would be very pleased to try and -- trying to put in place the kinds of things that would stop the federal
government's utilization.

We want the right training, we want the right kind of discipline, we want the right kind of detection
measures and the right kind of remediation measures, because racial profiling doesn't belong in
the federal government's operational arsenal.

[...]

REP. WEINER: Attorney General, are you familiar with the Jonathan Pollard case? The case of --
Jonathan Pollard was someone who was convicted of spying on behalf of Israel.

He's serving a life sentence, despite the fact that a plea bargain had been struck saying that the
Justice Department would not ask for a life sentence.

One of the reasons that sentence was imposed was Caspar Weinberger, the secretary of Defense
at the time, introduced a memo at the last moment and he asked for a life sentence to be imposed.
That memorandum is now important to the efforts of Mr. Pollard to grant a new hearing on his
sentencing. The Department of Justice has refused to turn that over to the attorneys, or to me, for
that matter. And that was, I think, a mistake in policy.

Would you agree to turn over the information so that Mr. Pollard's lawyers can pursue his rights
under the law?

ATTORNEY GENERAL ASHCROFT: I'll be happy to confer with the department about reasons whether or not they should turn over the memo and what the legal policy is on it. I don't have the --

REP. WEINER: I appreciate that. Is there any reason -- if I can interrupt you. Is there any reason why I can't have a viewing of it?